Race separation ratified

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The U.S. 9th Circuit Court of Appeals has ratified racism that celebrates Native Hawaiian ancestry with tortured reasoning reminiscent of Jim Crow. The 9th Circuit's 8-7 en banc ruling in Doe v. Kamehameha Schools (Dec. 5) upholding a racially exclusionary admissions policy for Kamehameha Schools marks manipulative judging at its worst.

King Kamehameha I's signature contribution to Hawaii's legal and political culture was the general erasure of distinctions between Native and non-Native Hawaiians. The king anticipated United States Chief Justice Harlan Fiske Stone's admonition that racial distinctions are odious to a free people.

The Kamehameha Schools were created under a charitable testamentary trust established by the last direct descendant of King Kamehameha I, Princess Bernice Pauahi Bishop. The trustees chose to confine admissions to students with at least one Native Hawaiian ancestor because the exclusion of non-Native Hawaiians was thought to represent the wishes of Mrs. Bishop. Native Hawaiians were not preferred to overcome past legal, social, economic or other discrimination. Indeed, Native Hawaiians have been special favorites of the law for more than a century since annexation.

Nor were Native Hawaiians favored to promote educational diversity. The exclusion of non-Natives impaired that objective. In sum, the admissions policy amounted to racial exclusion or the sake of exclusion.

A non-Native applicant challenged the Kamehemeha Schools' "Native Hawaiians Only" admissions policy under a federal civil rights statute prohibiting racial discrimination in making or enforcing contracts, Title 42 of the U.S. Code, Section 1981. (The social ostracism unleashed against persons in Hawaii who challenge the political correctness of Native Hawaiian preferences obligated the plaintiff to sue under the pseudonym "John Doe.") The Supreme Court held in Runyon v. McCrary (1976), that Section 1981 prohibits private schools from racially discriminatory admissions policies. Indeed, the high court later held in Bob Jones v. United States (1983) that an unexpressed public policy of the United States prohibited tax exemptions for discriminating private schools.

The 9th Circuit, speaking through Judge Susan P. Graber, insisted, nevertheless, that the racial exclusivity of the Kamehemeha Schools was a proper remedial measure. But a remedy implies a wrong. And Native Hawaiians have never received less than equal treatment under federal or state law. Further, Native Hawaiian enrollees are not vetted for past discrimination. Their families may be highly privileged.

Judge Graber absurdly maintained that, "Native Hawaiian students are systematically disadvantaged in the classroom." She was unable to point to any class activity or instruction indicating Native Hawaiians were treated differently from non-Native Hawaiians. The judge simply recited that as a group Native Hawaiians displayed less academic success than their non-Native Hawaiian counterparts. But lesser performance does not establish discrimination. If it did, every subperforming minority group would hold a federal civil rights claim against every public or private school in the country.

Judge Graber argued Kamehameha Schools' racial exclusiveness was justified to help perpetuate Native Hawaiian culture. But that reasoning endorses racial balkanization, and turns E Pluribus Unum on its head. Whites, blacks, Hispanics, Chinese Americans, Japanese Americans, etc. would be permitted monochromatic schools to promote their respective cultures.

Judge Graber scolded plaintiff Doe for complaining about his race-based exclusion. She lectured that "students denied admission by Kamehameha Schools have ample and adequate alternative educational options," a variation of the "separate-but-equal" doctrine that the Supreme Court repudiated 52 years ago in Brown v. Board of Education (1954).

In a feat of Orwellian logic, the judge scorned Doe's legal expectation of nondiscriminatory treatment because Kamehameha Schools' racial discrimination had been notorious for 118 years: "When the schools began, a non-Native Hawaiian had no expectation of admission to the schools. ... In the intervening 118 years, the schools' admissions policy, and therefore the expectations of non-Native Hawaiians, has remained constant. Thus, denial of plaintiff's application for admission [based on race] 'unsettled no legitimate, firmly rooted expectation.' " With that reasoning, Jim Crow would still be thriving in the South because blacks knew at the inception of the Civil Rights Movement they confronted a racism that had been continual since the end of Reconstruction and thus had no reasonable expectation of equal treatment.

Judge Graber fancifully argued that the schools' 118 years of racial exclusiveness was temporary, not perpetual, and thus satisfied relevant precedents regarding preferential admissions. The exclusiveness is scheduled to continue until the achievement gap between Native Hawaiians and non-Native Hawaiians has been eliminated. But exclusiveness for more than a century has done nothing to narrow the gap. Adding more zeroes to zero still equals zero.

The 9th Circuit surrendered reasoning, law and moral justice to placate a moblike atmosphere in Doe. It embarrassed many of the profiles in judicial courage that accelerated that end of Jim Crow.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.